Fourie v Land en Landbou van Suid-Afrika (ECJ 2004/037) [2004] ZAECHC 36 (20 October 2004)

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

Reportable ECJ NO : 037/2004

PARTIES: P S FOURIE Appellant

and

LAND- EN LANDBOU VAN SUID-AFRIKA Respondent

REFERENCE NUMBERS -

Registrar: CA694/03 (GHT)

DATE HEARD: 18 OCTOBER 2004

DATE DELIVERED: 20 OCTOBER 2004

JUDGE(S):

JANSEN J

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): B DYKE

for the accused/respondent(s): J HUISAMEN

Instructing attorneys:

Applicant(s)/Appellant(s):

NETTLETONS

Respondent(s): WHEELDON RUSHMERE & COLE

CASE INFORMATION -

Nature of proceedings : Civil Appeal

Topic: Jurisdiction

Keywords: Whether High Court may declare immovable property outside its area of jurisdiction executable

IN THE

HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No.: CA694/2003

Date delivered:

In the matter between:

PHILLIPUS STEYN FOURIE Appellant

LAND-EN LANDBOUBANK VAN SUID-AFRIKA Respondent

JUDGMENT

JANSEN J:

On 12 July 2002 the respondent obtained judgment against the appellant in the South Eastern Cape Local Division of the High Court under case no. 975/2002 in, inter alia, the following terms:

“a. Payment of the sum of R83 492,68;

Interest on the sum of R83 492,68 at the rate of 15% per annum, calculated monthly and compounded from 31 March 2002 to date of payment, together with cancellation costs in the sum of R60,00;

An Order in terms whereof the following properties:

Portion 6 (Salie Boom)(portion of Portion 5) of the farm Aluin Krantz West Nr 196, Division Alexandria in the Eastern Cape

Province

Portion 8 (Salie Boom)(portion of Portion 1) of the farm Aluin Krantz West Nr 196, Division Alexandria in the Eastern Cape

Province

be declared specially executable”

Leave having been granted by Pather AJ, the appellant now appeals against the relief granted in terms of paragraph (c) of the Court’s Order. The single ground of appeal is that Pather AJ erred in granting the order in terms of prayer (c) as the South Eastern Cape Local Division of this Court did not have the necessary jurisdiction to hear the matter, it not being the forum re sitae of the immovable properties which are situated in the district of Alexandria not within the jurisdiction of the South Eastern Cape Local Division but within the jurisdiction of the Eastern Cape Division of this Court.

It is common cause that the district of Alexandria does not fall within the area of jurisdiction of the Local Division.

We were referred by counsel for the respondent to Common Law of South Africa volume IV by Manfred Nathan at pages 2025-2032 where the learned author inter alia refers to the fact that jurisdiction presupposes the existence of imperium, which is the power of making orders, enforcing them, and compelling obedience to them. We were further referred to the proposition that the reason for holding that the jurisdiction of a court of a defendant’s domicile, which would normally have jurisdiction on the basis of the maxim actor sequitur forum rei, is excluded in cases involving claims relating to the title to and the transfer of property, is that execution of the court’s order cannot be effected if granted. In terms of our common law a judgment in rem relating to immovable property can only be binding according to the lex loci rei sitae so as to effect the title to and dealings with such immovable property. The rationale for this rule in the common law was that the court had no jurisdiction to enforce the physical delivery of such property situated in territory other than that over which it exercised jurisdiction. Counsel correctly conceded that prima facie therefore the only court which is competent to enforce the right of possession to immovable property is the court which has jurisdiction over the area where such property is situated.

The respondent’s case is primarily based on the provisions of sections 26(1) of the Supreme Court Act No. 59 of 1959 which reads as follows:

“The civil process of a provincial or local division shall run throughout the Republic and may be served or executed within the jurisdiction of any division.”

It was submitted on behalf of the respondent that the effect of section 26(1) is that on the ground of effectiveness provincial and local divisions are now endowed with a jurisdiction which they did not previously have. This Court was invited on behalf of the respondent to find that section 26(1) of the Supreme Court Act altered, modified and expanded the common law. For this proposition reliance was placed on the decision of Munnik CJ in Ward v Burgess & Another 1976 (3) SA 104 (TK) and the judgment of Hoexter JA in Hugo v Wessels 1987 (3) SA 837 (A). I need not refer to the dicta in those cases, relied upon, as they are clearly distinguishable because in both of those matters the claims were of a personal nature and not claims in rem. Reliance was further placed on behalf of the respondent on Herbstein & Van Winsen: The Civil Practice of the Supreme Court of South Africa, 4th edition, at page 72 where the learned authors, with reference to the provisions of section 26(1), said the following:

“This, in effect, enables a provincial or local division to command the sheriff of another area to attach and sell in execution property situated within that area – a power he did not formerly have – and consequently, in granting judgment on a mortgage bond, to declare executable immovable property within the Republic but outside the territorial limits of the court.”

These views of the learned authors, albeit formulated a bit differently, in a previous edition of their work was considered by a Full Bench of this Division in a case reported as Ex Parte Boshoff 1972 (1) SA 521 (ECD). At 522H-523A Kotzé J said the following:

“It seems to us that the language of the Legislature that “die siviele prosesstukke van ‘n provinsiale of plaaslike afdeling geld dwarsdeur die Republiek en kan in die regsgebied van enige afdeling bestel of ten uitvoer gelê word” is hardly the language one would expect the Legislature to have used to widen so fundamental a matter as the jurisdiction of the Supreme Court. The words “geld dwarsdeur die Republiek” and its English counterpart “shall run throughout the Republic” are not in our view intended to achieve more than to give validity to process, competently decreed and to facilitate its execution. We further hold the view that such inconclusive language cannot be construed as conferring jurisdiction which did not previously exist.”

The judgment concludes with an approved quote of the following submission expressed at page 508 of Nathan, Barnett and Brink’s work on the Uniform Rules of Court:

“But the alteration only affects a procedural change and does not, it is submitted, subject to the jurisdiction of the Court persons who would not otherwise have been subject to its jurisdiction. In other words, it only enables persons to be summoned, cited or served without the necessity for endorsement of the process; but it must still be shown that the Court has jurisdiction …”

A similar view is expressed by Erasmus in his work Superior Court Practice at A1-77 in the following terms:

“The section was cast into its present form in 1963. The purpose of the amendment of the section was not to augment the jurisdiction of the High Court in any way, but to streamline the procedure for the enforcement of the process of one division in the area of another by doing away with the additional procedure previously required for that purpose and by making it apply automatically. The section is concerned with service and execution of civil process; it is purely procedural and does not, and indeed cannot, effect any change to substantive law.

The section in its original form did not permit, and in its amended form does not permit, one division to order attachment to found or confirm jurisdiction of property situate in the area of another division. The court, accordingly, has no jurisdiction to make an order authorising the attachment to found or confirm jurisdiction of the person (or property) of a peregrinus who is not physically present (or whose goods are not within) the court’s jurisdiction or to make a garnishee order against a peregrinus on the basis of the section only.”

I am, with respect, in agreement with the views expressed by the learned author for which he inter alia relies on the judgment of Kotzé J in Boshoff’s case. This issue also received the attention of Trollip JA in Estate Agents Board v Lek 1979 (3) SA 1048 (AD) at 1062D-H. The learned Judge of Appeal referred to the fact that the Supreme Court Act of 1959 retained the existing system of the divisions of our Supreme Court each with substantially the same territorial original jurisdiction in civil matters as had previously existed. He then referred to the original sections 25 and 26 of the Supreme Court of 1959 which were subsequently combined in a single provision by Act No. 85 of 1963. The learned Judge continues to state as follows:

“They were thereby combined in a single provision in section 26(1) saying simply that the civil process of any Division shall run throughout the Republic and may be served or executed within the jurisdiction of any Division. This was merely to further simplify the procedure and did not augment the jurisdiction of a Division in any way. See Ex Parte Boshoff 1972 (1) SA 521 (E) at 522-3 …”

(See also Gwanza Trust v Lukhozi Consulting Engineers and Development Planners CC 2001 (1) All SA 364 (Ck).)

It follows that the learned Judge a quo should not have granted the order in terms of prayer (c).

The appeal is allowed with costs. Prayer (c) of the Order granted by Pather AJ on 6 July 2002 is deleted.

______

J C H JANSEN

JUDGE OF THE HIGH COURT

CHETTY J:

I agree.

_______

D CHETTY

MAYA J:

______

M MAYA